The Canadian Privacy Law Blog: Developments in privacy law and writings of a Canadian privacy lawyer, containing information related to the Personal Information Protection and Electronic Documents Act (aka PIPEDA) and other Canadian and international laws.

Wednesday, July 31, 2013

A group of RCMP officers today filed a complaint with the Privacy Commissioner of Canada, arguing that the Royal Canadian Mounted Police unlawfully trolled through their mental health records in order to discredit a psychologist who has been an outspoken critic of the force. The group also accuses the police force of disclosing mental health records of officers in its complaint against the psychologist from British Columbia. The complaint against the doctor was determined by the college of psychologists to be unfounded.

VANCOUVER — The RCMP violated the privacy of members being treated for mental health issues by handing over their personal medical files in a dispute with a British Columbia psychologist, says a group that advocates for Mounties across Canada, adding it has filed a complaint with the federal privacy commissioner.

The Mounted Police Professional Association said Tuesday it has asked for a full investigation, including whether the disclosure is part of a larger, systemic abuse of RCMP members' privacy.

"This exemplifies a crass and cynical disregard for the confidentiality of RCMP members' most sensitive personal health information," Rae Banwarie, association president, said in a statement.

"(The association) is concerned that it may have been done to intimidate those RCMP members in the doctor's care."

In the complaint, the group says the personal health information was provided to the B.C. College of Psychologists without permission to bolster RCMP allegations last August against Dr. Michael Webster, accusing him of lacking objectivity and practising outside of his area of expertise.

Webster had become a vocal critic of the organization after 20 years of treating Mounties, and testified about the culture within the force at the public inquiry into the Taser-related death of Robert Dziekanski at Vancouver's airport.

Webster was a psychologist once consulted by RCMP and other law enforcement agencies in incidents like the Gustafsen Lake standoff in 1997 and the Branch Davidian standoff in Waco, Texas, in 1993, but Webster told the Dziekanski inquiry the force had been "brainwashed" by the Taser manufacturer.

He testified officers were using the stun weapons instead of using non-life threatening responses.

After that, Webster has said business from the RCMP dried up.

Earlier this year, the college found the complaint against Webster was unfounded. The organization declined a request for comment and would not release its report on Tuesday, suggesting a request would have to be filed under provincial Freedom of Information legislation.

But Rob Creasser, spokesman for the Mounties' association, said it was through that process that Webster found out the personal information had been handed over, and he informed the members.

"Dr. Webster has been an advocate for change in the RCMP because his take on it has been that the RCMP is a toxic workplace, and he, as a practising psychologist, has difficulty putting his clients back into a workplace that will continually cause them to be sick," Creasser said.

The RCMP did not immediately return a call for comment. A call to Webster's office was also not immediately returned.

Although the force's complaint against the psychologist was not substantiated, RCMP health services will not pay for treatment by Webster, Creasser said.

The association is asking the federal privacy czar to look into whether the disclosure in this case is part of a larger, systemic abuse of members' private information.

[64] This status of the law was most recently affirmed by Mr. Justice Ball in Demcak v. Vo, 2013 BCSC 899 (CanLII), 2013 BCSC 899:

[8] The issue which arises from these allegations is whether there is a tort for breach of privacy in British Columbia. No common law tort of invasion or breach of privacy exists in British Columbia: Hung v. Gardiner, 2002 BCSC 1234 (CanLII), 2002 BCSC 1234 at para. 110 aff’d 2003 BCCA 257 (CanLII), 2003 BCCA 257 and Bracken v. Vancouver Police Board, 2006 BCSC 189 (CanLII), 2006 BCSC 189 at para. 28. The plaintiffs are not represented by counsel, and notwithstanding they appear to have received legal advice, the claim as filed is ill founded.

[65] Given the clear status of the law in British Columbia that the tort for invasion of privacy does not exist, it is “plain and obvious” that the claim for common law breach of privacy fails to disclose a reasonable claim. This claim will be struck.

Wednesday, July 24, 2013

This probably shouldn't be too surprising for lawyers practicing in this area, but a judge of the British Columbia Supreme Court has stated that there is no common law tort of invasion of privacy in the province. In Demcak v. Vo, 2013 BCSC 899, the plaintiffs were suing the City of Richmond (among others) related to an inspection of the property carried out under provincial law and municipal authority:

[10] The City has a statutory authorization to enter and inspect property including residences and uses of property within the City boundaries. That statutory authorization is provided for in s. 16 of the Community Charter, S.B.C. 2003, c. 26. The City may also attend pursuant to relevant enacted bylaws. The consent of the occupants is not required where valid written notice of the inspection is given. This occurred in the case at bar.

The inspectors entered the premises and took photos. The plaintiff claimed for trespass and some sort of "invasion of privacy". The plaintiff, notably, did not make any claims under the British Columbia Privacy Act, which creates a statutory right of action for invasion of privacy. The Court found that there was no common law tort of invasion of privacy and struck the claim from the plaintiff's pleadings.

[8] The issue which arises from these allegations is whether there is a tort for breach of privacy in British Columbia. No common law tort of invasion or breach of privacy exists in British Columbia: Hung v. Gardiner, 2002 BCSC 1234 (CanLII), 2002 BCSC 1234 at para. 110 aff’d 2003 BCCA 257 (CanLII), 2003 BCCA 257 and Bracken v. Vancouver Police Board, 2006 BCSC 189 (CanLII), 2006 BCSC 189 at para. 28. The plaintiffs are not represented by counsel, and notwithstanding they appear to have received legal advice, the claim as filed is ill founded.

[9] A breach of privacy is actionable under statue in British Columbia pursuant to the Privacy Act, R.S.B.C. 1996, c. 373 (“Privacy Act”). The plaintiffs made no pleadings regarding the Privacy Act. The pertinent sections to the case at bar are:

Violation of privacy actionable

1 (1) It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another.

(2) The nature and degree of privacy to which a person is entitled in a situation or in relation to a matter is that which is reasonable in the circumstances, giving due regard to the lawful interests of others.

(3) In determining whether the act or conduct of a person is a violation of another's privacy, regard must be given to the nature, incidence and occasion of the act or conduct and to any domestic or other relationship between the parties.

(4) Without limiting subsections (1) to (3), privacy may be violated by eavesdropping or surveillance, whether or not accomplished by trespass.

Exceptions

2 (1) In this section:

"court" includes a person authorized by law to administer an oath for taking evidence when acting for the purpose for which the person is authorized to take evidence;

"crime" includes an offence against a law of British Columbia.

(2) An act or conduct is not a violation of privacy if any of the following applies:

(a) it is consented to by some person entitled to consent;

(b) the act or conduct was incidental to the exercise of a lawful right of defence of person or property;

(c) the act or conduct was authorized or required under a law in force in British Columbia, by a court or by any process of a court;

(d) the act or conduct was that of

(i) a peace officer acting in the course of his or her duty to prevent, discover or investigate crime or to discover or apprehend the perpetrators of a crime, or

(ii) a public officer engaged in an investigation in the course of his or her duty under a law in force in British Columbia,

and was neither disproportionate to the gravity of the crime or matter subject to investigation nor committed in the course of a trespass.

...

[10] The City has a statutory authorization to enter and inspect property including residences and uses of property within the City boundaries. That statutory authorization is provided for in s. 16 of the Community Charter, S.B.C. 2003, c. 26. The City may also attend pursuant to relevant enacted bylaws. The consent of the occupants is not required where valid written notice of the inspection is given. This occurred in the case at bar.

[11] The owner of a rented residential property or landlord has the right to inspect that property as provided in s. 29(1) of the Residential Tenancy Act, S.B.C. 2002, c. 78. Again, clear written notice of the inspection was given to the plaintiffs more than 24 hours before the inspection according to the filed documents.

[12] On the facts of the case now before me, the inspections of the property, including the residences or vehicles thereon, were authorized by law. These inspections are outside the scope of the tort created by s. 1 of the Privacy Act. As there is no common law tort of privacy in BC, the claims contained in para. 13 of the present notice of civil claim are without legal foundation and cannot hope to succeed. The claims in that paragraph are dismissed.

It is worth noting that the Court didn't go into any detailed analysis of the issue, but it is clear to me that what was complained-of did not fit within the tort set out in the Privacy Act, nor would it be actionable as an intrusion upon seclusion under the Jones v Tsige tort.

Friday, July 19, 2013

The Federal-Provincial-Territorial task force on Cyberbullying and the Non-Consensual Distribution of Intimate Images has today released its report.

There have been some fears that this would be an opportunity to revive "lawful access" and some of the issues are touched upon in recommendation 4:

Recommendation 4

The Working Group recommends that the investigative powers contained in the Criminal Code be modernized. Specifically, the Working Group recommends that an approach consistent with recent proposed amendments on this subject to better facilitate the investigation of criminal activity, including activity that is conducted via telecommunication be introduced and implemented as part of any legislative package responding to cyberbullying. These amendments should include, among others:

Data preservation demands and orders;

New production orders to trace a specified communication;

New warrants and production orders for transmission data;

Improving judicial oversight while enhancing efficiencies in relation to authorizations, warrants and orders;

Other amendments to existing offences and investigative powers that will assist in the investigation of cyberbullying and other crimes that implicate electronic evidence.

The report also calls for the creation of a new criminal offence related to the non-consensual distribution of intimate images and the discussion on the topic is refreshingly nuanced.

“The report also recommends that all levels of government continue to build on initiatives to address the issue of cyberbullying in a comprehensive manner, including prevention, education, and awareness-raising activities.

“For my part, I will consider the report and its recommendations, which will help guide the way forward to ensuring our children are safe from online exploitation.

“The Government of Canada has taken significant steps toward cracking down on violent crimes, preventing victimization, and addressing the harmful behaviours associated with bullying and cyberbullying.

“For example, under the National Crime Prevention Strategy, in the fall of 2012, the Government of Canada committed up to $10 million toward new crime prevention projects, including the prevention of school-based bullying, focused on children and youth.

“GetCyberSafe, the Government of Canada’s public awareness campaign on online safety, has information about cyberbullying that includes how to talk to youth about it and how to respond to this type of incident.

“And NeedHelpNow.ca is a new resource designed to help youth who have made the mistake of sending sexual images of themselves to peers, which can lead to cyberbullying. The site offers youth tips on removing content, strategies for addressing peers and moving forward, as well as information on possible related Criminal Code violations.

“I sincerely thank federal, provincial and territorial officials for having collaborated on this vital report. I look forward to working together with the provinces and territories as we make improvements to our justice system to prevent such tragic circumstances from happening again.”

The important principle to take away from this case is that class actions, damage awards and even legal fees do not amount to much in Canada if you can't prove actual harm:

[13] There were extensive negotiations in Canada, and the parties did negotiate a Settlement Agreement. The major terms of the settlement are as follows:

Class Members who had a credit balance in their PSN or SOE account at the time of the Intrusions but have not used any of their accounts shall receive cash payments for credit balances.

The Sony Entities will make available online game and service benefits to class members geared principally to the type of account (PSN, Qriocity, and/or SOE) held by the class member at the time of the Intrusions.

The settlement benefits are available through a simple process. To become entitled to benefits, Class Members need only to complete a claim form.

The Sony Entities will reimburse any Class Members who can demonstrate that they suffered Actual Identity Theft, as defined in the Settlement Agreement.

Class Members that prove Identity Theft can submit claims for reimbursement of out-of-pocket payments (not otherwise reimbursed) for expenses that are incurred as a direct result of the Actual Identity Theft, up to a maximum of $2,500.00 per claim.

The Sony Entities are to pay for the costs associated with providing notice of the Settlement Agreement and the settlement approval hearing, all administration costs, as well as an agreed amount for plaintiffs’ lawyers’ fees and expenses.

[14] Class Counsel requests approval of a fee of $265,000 inclusive of fees, disbursements, and applicable taxes. This claim is less than the value of the docketed time for the matter, which exceeds $300,000.

Saturday, July 13, 2013

Most Canadians are surprised to discover that we have a secret court, just like the US Foreign Intelligence Surveillance Court, that meets in a bunker in Ottawa, issuing secret warrants to do a range of cloak and dagger activities including wiretapping and installing bugs. But we do. (They are judges designated under the Canadian Security Intelligence Service Act by the Chief Justice of the Federal Court of Canada.)

Most Canadians are also surprised to learn that we have the canuck equivalent of the National Security Agency (the CSEC) and our own Canada Patriot Act in the Anti-Terrorism Act.

But one thing that distinguishes Canada from the US in an important way is that designated judges under the CSIS Act have, from time to time, retained "friends of the court" to argue positions in opposition to government requests. It hasn't happened often, but is something that our friends to the south may want to consider as controversy about PRISM and a secret body of evolving caselaw is being established.

Unopposed applications resulting in secret decisions with significant civil rights and constitutional implications easily leads to the presumption that the system is rigged and intelligence agencies get a free ride. While transparency would call for published decisions and open court, independent lawyers arguing the other side is a step in the right direction.

I've managed to find three published decisions from Canada where amici where used, and perhaps there are more that are unpublished.

For example, in Re Canadian Security Intelligence Service Act, 2008 FC 300, an amicus assisted the court in considering whether a jurisdictional issue raised in a warrant application could be heard in public, in open court. (The answer was no, but the decision was published.) In connection with the same matter, in Re Canadian Security Intelligence Service Act, 2008 FC 301, an amicus curiae was appointed to consider whether the court can authorize CSIS to carry out clandestine activities outside of Canada. (The answer was no.)

More recently, in Reference re sections 16 and 21 of the Canadian Security Intelligence Service Act, 2012 FC 1437 (CA), the Court called upon a amicus curiae to help with the question of whether "section 16 of the Canadian Security Intelligence Services Act prohibits the naming of [a Canadian citizen, permanent resident or corporation] in a warrant as [a natural or corporate person] whose communications are proposed to be intercepted, when the warrant is issued in relation to a request for assistance in the collection of information or intelligence from the Minister of National Defence or the Minister of Foreign Affairs relating to the capabilities, intentions or activities of [a foreign state or group of foreign states, corporation or person]." Importantly, the Court agreed with the amicus and denied CSIS the warrant.

Friday, July 12, 2013

The Supreme Court of Canada yesterday granted leave to appeal in the case of R. v. Fearon. The Court is limiting its review of the Ontario Court of Appeal decision to privacy issues related to police searches of phones incident to arrest. In this case, it was an LG feature phone, not a smartphone but I expect that the Court will establish general principles that will cover all mobile electronics.

Charter of Rights and Freedoms – Criminal law – Search and seizure – Right to counsel – Right to silence – Evidence – Whether search of cell phone during arrest requires search warrant or is within a police officer’s authority to search incident to arrest – Whether contents of applicant’s cell phone should have been excluded from evidence – Whether statement to police was voluntary – Whether applicant waived his right to counsel.

The applicant was arrested for armed robbery. During a search incident to the arrest, a police officer found the applicant’s cell phone. It was not locked nor password protected. The officer examined the contents of the phone and found photographs of a gun and cash, as well as an incriminating text message. The officer seized the cell phone. The cell phone was searched several more times at the police station that day and the next day but no more evidence was extracted. Months later, a search warrant was obtained to search the phone again. The applicant was advised of his rights upon arrest and, en route to the police station, he stated that he wanted to call a lawyer. At the police station, the arresting officers advised the booking officer that the applicant had asked to talk to a lawyer. The applicant was left in an interview room for five hours without opportunity to contact counsel. When he was interviewed, he was again advised of his right to counsel. He made incriminating statements.

Please note that I am only able to provide legal advice to clients of my firm. If you have a privacy matter, please contact me about becoming a client. I am not able to provide free legal advice. Any unsolicited information sent to David Fraser may not be protected by solicitor-client privilege.

The views expressed herein are solely the author's and should not be attributed to his employer or clients. Any postings on legal issues are provided as a public service, and do not constitute solicitation or provision of legal advice. The author makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained herein or linked to. Due to professional ethics, the author may not be able to comment on matters in which a client has an interest. Nothing herein should be used as a substitute for the advice of competent counsel.

This web site is presented for informational purposes only. These materials do not constitute legal advice and do not create a solicitor-client relationship between you and David T.S. Fraser. If you are seeking specific advice related to Canadian privacy law or PIPEDA, contact the author, David T.S. Fraser.